The morning news. [volume] (Savannah, Ga.) 1887-1900, 1887-06-26
f0GARTY'S CASE HEARD.
IE ARGUMENTS FOR AND
AGAINST A NEW TRIAL.

AGAINST A NEW TRIAL.
ncompetency Of the Jury-Affidavits
and Counter Affidavits-Th Effect of
Opinions Formed from Newspaper
Reports Argued-The Insanity Plea
Discussed-Judge Adams Reserves
His Decision.
The motion for new trial in the famous
Fogarty case was heard in the Superior
court yesterday. P. w. Meldrim. Esq, and
P. J. O'Connor, Esq, appeared for the pris-
mer and Solicitor General du Bignon for the
state. The grounds upon which new trial
re asked are many, but the principal ones
re that two of the jurymen were incompe-
ent, and that the jury should not have rem
Tered the verGics that It did, because the de-
endant was insane
Mr.. Meldrim said that two of the jury
men had formed and expressed an opinion
hat Fogarty was guilty and they should
lot have been accepted as competent. They
had read the reports of the first trial in the
newspapers and from them had formed
opinions that were adverse TO the defend
Int. In answering the question whether he
had an opinion and whether - could give
The accused fair trial, one of the Jurors
laid that he had an opinion, but it could be
removed if better testimony was presented
10 him, still he would prefer not to serve
Mr.. Meldrim thought the mind of a juror
ihould be perfectly free from bias either
way.
STATEMENTS OF JURORS.
He introduced the affidavit of William
Ddel, which was that before the second
trial Martin G. Helmken had said ''Fogarty
1,rht tn ha faI ban 6oxx,y, To ba roll 0oH
bridge and hung the same as a Niger"
He also introduced the affidavit of Thomas
II. Monaban, which stated that James S.
Evans had said HE ought to be hung. If
was on the jury would convict him" The
iffidavits stated that the opinions alleged
were expressed before the second trial. Mr..
Meldrim did not think them competent
Jurors, although the statute only required
Jurors under examination to answer whether
from having seen the crime committed or
having heard any evidence delivered under
bath they had formed or expressed an
opinion either for or against the prisoner.
He thought that ii a juror had an opinion
h was unfair to accept him, even if that
opinion could be removed, because it re-
suired so much more evidence to remove it
and acquit the accused than if the opinion
lid not exist.
As to the verdict, the defense had intro
suced testimony to show that Fogarty was
anony to show that where epilepsy was con-
linued and violent it affected the mind, pre-
vented discrimination between right and
wrong, and eliminated in imbecility; that
though an epileptic insight not be imbecile
bis mind was not properly balanced, and
here might be times when he would not be
accountable for his actions.
DIFFERED WITH THE JURY.
He thought the verdict should have been
m aaoO-danpa with that Testimony Tho
Jury recommended mercy, and he thought
hat should weigh with the court.
He also excepted to the action of the
sourt in permitting two Jurors to have
newspapers.
Mr.. duBignon said that he had personally
examined the papers before they were given
10 the jury, and there was not word about
the Fogarty case in them. As to the ground
the defense took regarding the opinion
formed by the jurors from newspaper re-
ports, he cited authorities that said such
opinions did not disqualify as juror. He
also quoted the opinion of Judge, who
said that if such an opinion did render a juror
Incompetent, the juries would have to be made
up of men who do not or cannot read. The
Jurors against whom exceptions had been
taken had said that their opinions could be
changed by the evidence and that they
could give the accused a fair and impartial
trial Under the statute they were not in
cOIU!)eIeQlb. ne IeStu iIOUl
5. Evans, in which he denied that he had
made the statement attributed to him. He
also introduced an affidavit from Helmken,
who said that he had never expressed the
opinion that Fogarty ought to be hanged
he did not know that it was Thomas Fogar-
~ who was on trial but thought it was Fo-
garty's brother.
Concerning the insanity plea, he said that
Fogarty's counsel were responsible for the
course pursued in that matter The law of
Georgia was that if the accused was insane
a special plea of insanity might be filed, and
a jury from the grand jury might be
selected to try the defendant on that charge.
Ii he was then found to be insane, he was
sent to the asylum for life. IL the insanity
plea was incorporated with the plea of not
guilty, and ON trial the jury acquitted him
on that ground, he was turned loose on
society.
SPECIAL PLEA NOT ENTERED.
The counsel on the other side should have
entered special plea and so have done their
duty to their client and to society by send
ing him to the asylum if be was insane. but
they had rot followed that course, and if
they had proved his insanity on trial, a man
dangerous to society would have been set at
large. The jury had recommended. mercy.
it was true, but ma jority of juries in muir
der cases did that because sympathy
would naturally be aroused in be-
thought it was well ordained that it should
be so. In the administration of justice
sympathy should play its part, but there
was duty owing to society; it should be
protected from violent persons. The violent
insane the law sends TO the asylum, the vio-
lent sane to the penitentiary, and be
thought if Fogarty was insane he should have
been sent to the asylum under special plea
and not turned loose, perhaps to repeat
his violence. Medical testimony had been
introduced to prove Fogarty's insanity, but
he had been careful TO ask every one of the
experts whether they could say that Fogarty
WIS incapable of distinguishing between
right and wrong, but not one would say
that he was.
and reserved his decision.